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I'm confused at the situation and the current answer doesn't satisfy my inquiry. That answer seems to imply the Supreme Court has an advisory role in the executive branch, and nothing more. I want help in understand the actual powers of the Supreme Court.

If the Supreme Court has the ability to interpret the laws, but not enforce them, could they not just interpret the Constitution to give them the right to intervene in the executive branch when the executive branch is tasked with the enforcement of the laws and it refuses? What stops them from reading the Constitution and saying,

"Based on this court's reading of the Constitution, the Supreme Court is not meant to function in an advisory capacity to the executive branch. Because the president and the regime are in flagrant violation of the Constitution, we interpret the Constitution to allow us to dissolve the current executive branch, to delegate all matters of the executive Branch to the Senate, and to demand all states reform the executive branch with a new election within 30 days."

It's up to the courts to interpret the Constitution. While that would certainly cause a Constitutional crises, what would happen if they assumed that role of the court and came back with such a ruling?

phoog
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Evan Carroll
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2 Answers2

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This site can only answer what the law is, not what would happen in the case that the executive branch declines to follow or enforce the law.

The Supreme Court does not provide advisory opinions. This is the crux of the Article 3 standing requirement. The Supreme Court (and all federal courts) can only resolve an actual case or controversy. They do so by pronouncing what the law is, and making an order that can remedy the scenario (or remanding for a lower court to do so).

The current "rule of recognition" that is used to identify what the law is in the United States accepts that the Supreme Court of the United States can announce what the law is.

It is a legitimate question to wonder though why the executive branch generally treats opinions of the Supreme Court of the United States as binding. This is a question at the heart of the philosophy of law (jurisprudence): the question of obligation — why does a party accept the law as binding?

Various theories abound. I explain the prominent theories at this other Q&A: What does it mean to be "bound" in law?. I will briefly summarize here:

  • You invoke a theory based on enforcement. This was John Austin's theory.
  • Others (HLA Hart) propose that as a society, we have come to accept certain rules of recognition, change, and adjudication that make the law what it is. From those, an internal attitude of obligation is developed among officials.
  • Others recognize the role of tradition.
Jen
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Law does not interfere in politics

A court can make an order that is legally binding on the executive. If the executive refuses to comply, the court can hold them in contempt. If they still refuse to comply, the executive is acting illegally and the resolution of that is political, not legal.

Under the Constitution, the courts do not have the power to police the executive (or the legislature, or themselves); that power is given to Congress through the impeachment process (or the ability of each House to expel its members). Or the electorate through elections.

Now, if the executive refuses to follow an impeachment or the loss of an election, then you move outside both law and politics and into the realm of insurrection and civil war.

Dale M
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